195-Article Text-969-1-10-20230816

OJUMU, EMEJE & NWAJAH
JURISPRUDENTIAL EXAMINATION OF THE CONSTITUENT KERNELS OF FAIR HEARING https://doi.org/10.53982/alj.2022.1001.01-j
ABUAD Law Journal (ALJ)

Vol. 10, No. 1, 2022, Pages 1-25 https://doi.org/10.53982/alj.2022.1001.01-j
Published by College of Law, Afe Babalola University Law Journal,
College of Law, Afe Babalola University, Km 8.5, Afe Babalola Way,
P.M.B. 5454, Ado Ekiti, Ekiti State, Nigeria ISSN: 2971-7027
www.abuad.edu.ng, abuadlawjournal@abuad.edu.ng
Jurisprudential Examination of the Constituent Kernels of Fair Hearing
CLETUS OJUMU*,
ARUWA EMEJE**
PATRICK OKEREKE NWAJAH***
Abstract
The importance of fair hearing in the administration of justice can never be

underestimated in the existence of mankind. Fair hearing is ordained by God and that is
why God gave Adam and Eve the opportunity of being heard before giving them
punishment, ditto to Cain. The right to fair hearing requires that an individual shall not be
penalised by a decision affecting his rights or legitimate expectations unless he has been
given prior notice of the case against him, a fair opportunity to answer it and the
opportunity to present his own case against. It also requires that the person hearing the
matter be an unbiased person and should not have a likelihood of bias. It is founded on
the twin pillars of justice expressed in Latin maxim Audi alteram partem and Nemo judex
in causa sua. This article examines the principles of fair hearing andits constituent
elements in our adversarial jurisprudence. It achieves this through doctrinal method of
research using primary sources; Constitution,statutes,conventionsand case laws and
secondary sources materials; books, journal articles and online materials as the
methodology of this research.The paper finds that in every adjudicatory proceedings, all
parties must be placed on an equal platform and given an opportunity to testify before a
balanced and an impartial judge acceptable to all as fair and just. The paperrecommends
that Judges and those sitting over disputes must ensure fair hearing principles is observed
and eschew bias or likelihood of bias or sentiments which will put a stumbling block to
the adjudicatory wheel of fair trial.
Keywords: Jurisprudential, Examination, Constituent, Fair-hearing.
1
1.0 INTRODUCTION
Fair trial is an indispensable component of the rule of law and the principles of due process.
These rules are crucial for the protection against human rights abuses. The right to fair hearing
entails that all persons are equal before the law and by implication have the unfettered right to
judicial fairness.1 If there is one single right which has been so constantly, so frequently, and so
vigorously agitated in our courts, it is the right to fair hearing.2
The right to a fair hearing requires that an individual shall not be penalised by a decision
affecting his rights or legitimate expectations unless he has been given prior notice of the case
against him, a fair opportunity to answer it and the opportunity to present his own case. It also
requires that the person hearing the matter must be an unbiased person and should not have a
likelihood of bias.3
The rule of fair hearing, strictly speaking, requires that in all controversy between two or more
parties, judgement should not be based on a one-sided testimony. All parties must be placed on
an equal platform and given an opportunity to testify before a balanced and an impartial judge
acceptable to all as fair and just.4 Fair hearing means giving equal opportunity to be heard to the
parties in litigation before the Court. Fair hearing means that an individual will have an
opportunity to present evidence to support his or her case and to discover what evidence exists
against him or her. Put clearly, fair hearing presupposes that the court shall hear both sides not
only in the case but also on all material issues in the case before reaching a decision which may
be prejudicial to any party in the case; that the court or tribunal shall give equal treatment,
opportunity and consideration to all concerned; that the proceedings shall be held in public and
*LL.B (Hons), (UNIZIK), LL.M (OAU, Ile-Ife), Ph. D (in view), Lecturer, College of Law, Salem University,
Lokoja, Kogi State. Email: cletusojumu4all@gmail.com. Phone: 08067009160
**LL.B (Hons), (UNIJOS), LL.M (UNILORIN), Ph. D (in view), Lecturer, College of Law, Salem University,
Lokoja, Kogi State. Email: aruwae@gmail.com. Phone: 08066218389
***Patrick Okereke Nwajah, LL.B (Hons) (UNIMAID), LL.M (UNIZIK), Ph. D (in view), Lecturer, College of
Law, Salem University, Lokoja, Kogi State, Nigeria. Email Address: barr.patricknwajah@gmail.com, Phone
Number: 07060402042
1
YinkaOlomojobi, Human Rights and Civil Liberties in Nigeria: Discussions, Analyses and Explanations (Second
Edition: Princeton & Associates Publishing Co. Ltd 2018) 115
2
Oputa C A, Human Rights in the Political and Legal Culture of Nigeria (2ndIdigbe Memorial Lectures: Lagos,
Nigerian Law Publications 1989) 99
3
Fabian Ajogwu, Fair Hearing (Second Edition, CLDS Publishing 2020) 5
4
Ibid
2
all concerned shall have access to and be informed of such a place of public hearing; and that
having regard to all the circumstances, in every material decision in the case, justice must not
only be done but must manifestly and undoubtedly be seen to have been done.5 Where parties are
given the opportunity to be heard, they cannot complain of a breach of their right to fair hearing.
If one of the parties is refused a hearing or is not given an opportunity to be heard, the hearing
cannot qualify as fair hearing; and party cannot be said to have heard or given an opportunity to
be heard.6
Without fair hearing, the principles of natural justice and the concept of rule of law cannot be
established and grown in the Nigerian Society.7 This rule is basically the same in the content as
the principles of natural justice which underlines the importance of procedural requirements in
every process of adjudication. The rule of fair hearing has been said to be an omnibus provision
whose compliance will automatically mean compliance with the rules of natural justice. 8 The
importance of fair hearing in our adjudicatory jurisprudence cannot be over-emphasised; it
pervades the entire existence and humanity. Failure to abide by the rule of fair hearing renders
both the proceeding and its outcome meaningless. This work therefore examines the constituent
elements of fair hearing as it affects various facets of life.
2.0 FAIR HEARING AND NATURAL JUSTICE
Fair hearing encompasses the plenitude of natural justice in the narrow technical sense of the
twin pillars of justice expressed by the use of Latin expressions, namely: Audi alteram partem
(which literally means hear the other side) and Nemo judex in causa sua (No one should be judge
in his own cause). 9 Whereas the first of the expressions means that parties must be given
adequate notice and opportunity to be heard, the second means that an adjudicator should be
disinterested and unbiased. These two maxims have been aptly described as the ‘twin pillars of
natural justice.’10 Fair hearing is synonymous but not coterminous with the natural justice. 11The
two principles of natural justice are inherent in the provision for fair hearing but the provision
5
Kotoye v CBN &Ors (1989) 1 NWLR (Pt. 98) 419 per Nnaemeka-Agu JSC
6
Ibid at 6
7
S . C Eng. Nig v Nwosu(2008) 3 NWLR (Pt. 1074) particularly at page 306-307 Paras H-B
8
Aiyetan vNifor(1987) 3 NWLR (Pt. 59) 48
9
Ajogwu (n 3) at 9
10
Aiyetan v Nifor (Ibid)
11
Osita Nnamani Ogbu, Human Rights Law and Practice in Nigeria ((2nd Revised Edition: Enugu Snap Press Ltd
2013)240
3
goes beyond the rules of natural justice.12 Underscoring the distinction between fair hearing and
natural justice, the oracle of Common Law- Lord Denning, in an English case of Been v A. E.
U.13, succinctly but lucidly held thus:
It will be seen that they are analogous to those required by natural justice but not
necessarily identical. In particular a procedure may be fair although there has not been a
hearing of the kind normally required by natural justice. Conversely, fairness may
sometimes impose a higher standard than that required by natural justice. Thus, the
giving of reason for decisions is probably not required by natural justice, but, it has been
said, may be required by fairness because “the giving of reasons is one of the
fundamentals of good administration
The point being made here is that the foundations of a fair hearing should best be located in those
twin principles of natural justice usually expressed in the Latin maxims quoted above: Nemo
judex in causa sua( No man shall be a judge in his own cause) and audi alteram partem (hear the
other side). Fair hearing is ambidextrous and both limbs often operate in tandem with synchronic
nimbleness. But the Nigerian constitution, as we shall see, goes beyond these hackneyed
principles and furnishes additional criteria to ensure genuine fairness, and then expands the
contexts in which fair hearing would be required or demanded.14
2.1 Audi Alteram Partem
This literally means, hear the other side; hear both sides. It is a cardinal principle of natural
justice that whoever has to decide any case must hear both sides. It is not for nothing that
Almighty God gave human beings two ears and eyes to hear and see both sides.15 In fact, he who
shall decide anything without the other side having been heard, though he may have said what is
right, but he could not have done what is right.16
The gravamen of this maxim is that a party to a dispute must be passionately heard no matter the
frivolity of his case before a decision is taken either against him or in his favour.17
12
Ori-OgevA. G. Ondo State(1982) 3 NCLR 743
13
(1971) 2 QB 175, 191
14
Chinua Asuzu, Fair Hearing in Nigeria (Lagos, Malthous Press Limited 2010) 2
15
OkparaOkpara, ‘Right To Fair Hearing (Section 36 of the 199 Constitution)’ in OkparaOkpara (Ed)
HumanRightsLaw& Practice in Nigeria (Vol. 1: Enugu, Chenglo Limited 2005) 181
16
Adedeji v Public ServiceCommission (1968) NMLR 102/106
17
Ben O Igwenyi, Modern Constitutional Law in Nigeria (Abakiliki, Nwamazi Printing & Publication Co. Ltd
2006) 371
4
For any judgment to be legally valid, it should be passed after giving both the parties the right to
defend themselves and put forward their side of the story. In accordance with the principle of
natural justice, the maxim Audi alteram partem is divided into two facets; the first being notice
followed by hearing. All the affected parties must be given a notice before the proceedings take
place. The notice is given to make the parties become aware of the facts and issue in the case that
is going to be adjudicated.18 This is done in order to give the parties sufficient amount of time in
order to prepare for their defence. It is a sinequanon of the right to fair hearing.19 The second
facet ofaudi alteram partem is the rule of hearing. The parties should be allowed to represent
themselves and state the facts in accordance to their understanding. They should be heard by the
court of law.20
This rule is said to be as old as the world itself. That no man is to be judged unheard was a
precept known to the Greeks,21 enshrined in the scriptures22 and traced by an eighteenth-century
judge, Fortescue J, to the events in the garden of Eden in R v Chancellor, University of
Cambridge23where he said
The laws of God and man both give the party an opportunity to make his defence, if he
has any…even God did not pass sentence upon Adam before he was called upon to make
his defence. ‘Adam' (says God) ‘where art thou? Hast thou eaten of the tree whereof I
commanded thee that thou shouldst not eat?’ And the same question was put the Eve
also.24
The above English authority is a re-affirmation that the right to fair hearing is God ordained.
Before God, the omniscient and omnipotent condemned Adam to hard labour, the latter was
made to defend himself. The Good Book recorded the drama at the trial of Adam. 25 God also
18
Ajogwu(n 3) at 18
19
Ibid
20
Ibid
21
De Smith S A, Judicial Review of Administrative Action (4thedn: JN Evans 1980) 135
22
John5:57
23
(1723) 1 Str. 557, 567-per Fortescue
24
Per Fortesque J, R. v Chancellor, University of Cambridge. In the instant case, the University of Cambridge
deprived one Dr. Bentley of his degree without giving him an opportunity to defend himself. The Court held the
action of the University authorities to be void because it violated the fundamental principles of natural justice-the
audi alteram partem rule
25
Genesis 3:9-12
5
recognised and ordained the rule of fair hearing and doctrine of justice in the case of Eve26 God
did not rush into punishing Eve on the evidence of Adam.27
Similarly, the Bible truly recorded that Cain was offered the opportunity to defend himself.
When the Lord asked Cain, “where is Abel thy brother?” Cain replied, I know not: Am I my
brother’s keeper?”28 Thus, this recorded the first cross-examination in the history of mankind
because Cain was given the opportunity to answer to the serious allegation of murder of Abel.29
Admirably, acknowledging fair hearing as God’s ordained rights, the Supreme Court of Nigeria
in the case of Garba v University of Maiduguri,30 Oputa, JSC, explained this rule thus: “God has
given you two ears, hear both sides.”
Therefore, from decided cases the following propositions could be inferred as the implication of
the Audi alteram partem rule:
1. Every party appearing before a tribunal must be given equal opportunity to state his case.
He must be given the name of the accuser, and be informed of the accusation against him.
It is not enough to invite the person as a witness.31
2. A tribunal must base it’s decision on evidence of some probative value. It must not take
evidence in the absence of the parties.32
3. An accused person must be accorded reasonable opportunity to call his witnesses and for
them to be accorded hearing
4. It is wrong for an adjudicating body to withhold from an accused the nature of the
evidence which had been given against him before purporting to impose punishment on
him. He must be given a fair opportunity to correct or contradict evidence given against
him.33
5. A person who is liable to be affected by any decision, acts or proceedings (whether
administrative, judicial or quasi judicial) must be given adequate notice of what is
proposed so that he may be in a position to make representation by himself or through
someone else on his behalf or appear at the hearing or inquiry, and to answer the case he
has to meet.
26
Ibid
27
God addressed Eve Thus: “What is this thou hast done? The woman said, the serpent beguiled me, and I did eat.”
This drama shows that Eve was given the right to defend herself.
28
Genesis 4:3-12
29
OkparaOkpara(n 15) at 184
30
(1986) 1 NWLR (Pt. 18) 550. See also the case of Council of Federal Polytechnic, Mubi v TLM Yusuf &Anor
(1998) 1 NWLR (Pt 533) 343 SC
31
Deduwa v Okorordudu(1976) 9/10 SC. 329
32
Queen v Lt. Governor, Eastern Region (1975) 2 FSC 46, 489
33
Wilson v A. G. Bendel (1985) 1 NWLR (Pt. 4 572
6
6. The discretion to grant an adjournment must be exercised judiciously. Where it is

exercised capriciously and unreasonably it may amount to a denial of fair hearing.34
2.2JudexInCausa sua
This maxim literally means: no one can be a judge in his own case, for if one should be a judge
and a prosecutor or a party in a given case, he is bound to be biased. This is a second principle of
natural justice which savours on rule against bias or likelihood of bias. This second limb of
natural justice doctrine is expressed as the opinion or feeling in favour of one side in a dispute or
argument resulting in the likelihood that the judge so influenced will be unable to hold an even
scale, the judge or administrator was disqualified. 35 At common law, a court, tribunal or
administrative body before making a decision affecting the rights of any individual must be duly
constituted in a manner that will endure its impartiality and independence.36 The rule against bias
found judicial anchorage in the most often quoted dictum of Lord Hewart in the case of R v
Sussex JusticesExparte McCarthy37 that:
It is not merely of importance but it is of fundamental importance that justice should not
only be done but should manifestly and undoubtedly be seen to be done.
The apex Court stressing the principle of fair hearing as a derivation of natural justice and
fundamental to the administration of justice, held in Okanlawon v State,38 per Ariwoola, JSC,
thus:
The principle of fair hearing as constitutionally guaranteed in Section 36 of the 1999

Constitution, no doubt is derived from the principle of Natural Justice with it’s twin
pillars of “audi alteram partem” and “nemo judex in causa sua”. This principle of fair is
no doubt fundamental to the administration of justice. The court is required to conduct
trial or hearing of a case with all fairness to both parties to the suit and without bias or
partiality in favour of or against either party. It is noteworthy that complaint of breach of
fair hearing is usually against the court or tribunal; whether the parties before the court
were afforded equal opportunity to fully ventilate their grievances.39
The rule against bias ensures that no one becomes a judge in his own case or a matter which he
has any form of interest in. The judge must remain an impartial arbiter and umpire between the
34
Udo v The State (1988) 3 NWLR (Pt. 82) 316
35
Kehinde M Mowoe, Constitutional Law in Nigeria (Malthouse Press Ltd 2008) 361
36
Ibid
37
(1924) K. B. 256 or (1923 All E. R
38
(2015) LPELR-24838 (SC)
39
Ibid at Pp – 52-54, Paras F-G 141
7
two parties before him, holding the scale of justice in a disinterested manner. Hence, where there
is anything that will bring suspicion40 that justice has not been done in the eye of a reasonable
man must be removed. 41 The rule against bias has been held to operate in cases where for
instance the judge has pecuniary interest, expresses an opinion on the case that adversely affects
the case of other party, supports the prosecutor or the plaintiff or has any business or other
interests in the matter before him.42
Hence, where a judge has pecuniary (monetary) interest in a cause, his decision cannot be
allowed to stand on the ground of the principle of nemo judex in causa sua. This informed the
Supreme Court’s decision in Garbav University of Maiduguri43, where the court quashed the
decision of an administrative panel set up by the 1st Respondent which was headed by the
Deputy Vice Chancellor. There had been riot in the school whereof many property were touched
including that of the Deputy Vice Chancellor. The applicant was among those found liable by the
DVC‘s panel. The Supreme Court coramOputa JSC setting aside the panel’s findings stated thus:
It has to be a super human to be able to obliterate from his mind his personal plight to be
able to approach their assignments with impartiality, objectivity and fairness required of
those acting in a judicial or quasi judicial capacity.
Similarly, in University of Calabar v Esiaga44, the court established that bias may arise from the
following situations, namely' pecuniary interest in the litigation, blood filial or other form of
personal relationship with any of the parties and natural aversion to the facts of the case will lead
to the inability of the judge to naturally suppress his instinctive tendencies with regard to the
case.
In the same vein, where the adjudicator has interest in the outcome of a case, this rule is normally
applied to quash the decision of such adjudicatory body. This is the rule against bias in whatever
form and which can be gathered from the circumstances of the particular case. 45 This rule applies
equally to adjudications by judicial and administrative bodies.46 The test for bias is not whether
there was actual bias, but whether there is likelihood of bias which can be gleaned from available
40
Such factors may be proprietary or pecuniary interest, blood relationship or bias against any of the parties.
41
Olomojobi, (n 1) at 145
42
KehindeMowoe(n 35) 361
43
(1986) 1 NWLR (Pt 18) 550
44
(1997) 4 NWLR (Pt. 5020) 719 at 745. In the case of AdegboyeIbikunle v The State (2007) 1 S. C. (Pt. II) 32
45
Igwenyi(n 17) at 373
46
Okorie v Igbokwe (2000) 14 NWLR (Pt. 688) 498
8
facts and circumstances of the particular case. 47 Thus, in Alakija v Medical Practitioners
Disciplinary Committee,48 the plaintiff whose name was ordered by the defendant to be removed
from the Medical Register for misconduct for period of two (2) yearshad his name restored by
the Supreme Court because the Registrar of the Medical and Dental Council, who was the
prosecutor (accuser), took part in all the trial proceedings of the Committee which found the
appellant liable. The Registrar was thus a prosecutor and judge in his own case. 49 Also, in the
case of Nnamdi Azikiwe University v Nwafor,50 the disciplinary action against the respondent for
examination malpractice was quashed by the Court of Appeal because the members of the
Examination Committee who allegedly caught the respondent took part in the meeting of the
University Senate which met and ratified the disciplinary action. The members of the Committee
acted as judges and complainants which is against Nemo judex rule.
It has, therefore, been severally held that blood relationship; business or commercial ties;
professional relationship, personal friendship; hostility in the course of trial etc are some of the
indices for establishing bias and which can disqualify a judge or a person from acting in a
judicial or quasi-judicial capacity.51
Implicit in this principle, is also judicial independence and impartiality which also form the
cornerstone of the right to fair hearing.52 An adjudicator must be fair to all parties before him
because he has no financial or proprietary gain to make out of the case. Fairness requires the
adoption of a clear procedure devoid of partiality.53
2.3 The Basic Exceptions to Nemo Judex In Causa Sua Rule
47
OsitaOgbu (n 11) at 245. See the case of Metropolitan Properties v Lannan (1968) 3 All E. R. 304
48
(1959) 4 F.S.C. 38
49
Ibid. The suspicion of bias, once based on reasonable and not fanciful ground is enough to quash a trial, see the
case of Ikomi v State (1986) 3 NWLR (28) 340 S.C.
50
(1999) 1 NWLR (Pts 584-588) 116
51
LPDC v Fawehinmi(1985) NWLR 300
52
Adio v A. G., Oyo State (1990) 7 NWLR (Pt. 163) 448 C A
53
OkparaOkpara (n 15) at185
9
The Natural Justice principle of Nemo Judex In Causa Sua is a principle with some recognizable
exceptions. Learned writers have classified with approval, but with variations in their methods of
analysis, the exceptions to the nemo judex rule.54
According to a learned writer in India, Mr. Singh, in his book titled: “The Supreme Court of
India as an Instrument of Social Justice”, he classified the exceptions to be:
i. Necessity;
ii. Contempt;
iii. Waiver; and
iv. Purely Administrative Duty.55
Another writer by name Mr. Craig, 56 in his book on Administrative Law, narrowed the
exceptions to the first three listed above, while exempting the last one.
The last exception stated by Mr. Singh that is, purely administrative duty would be discarded as
being of doubtful validity, as all authorities including administrative panels are by law, required
to conform with the natural justice rule.57
2.3.1 Doctrine of Necessity
The doctrine of necessity operates within various situational context, howbeit in times of
exigencies, which can however, be colligated in the terse statement of Law that states
thus: “what is not lawful becomes otherwise lawful by necessity.”58
Conversely stated, the doctrine of necessity can operate to:
1. Validate actions or acts which are ipsofacto unlawful, to be lawful;
54
Balogun SofiyulahiO, Exceptions to Natural Justice: Nemo Judex In Causa Sua, available online at:
https://dnllegalandstyle.com.2017>appraisal-exceptions-natural-justice-nemo-judex-causa-sua-balogun-sofiyulahi-
o/.
55
B Singh, The Supreme Court of India as an Instrument of Social Justice (Sterling Publishers PVT Ltd1976)
56
PP Craig, AdministrativeLaw (Sweet & Maxwell 1983)
57
Iyeghe v. Ahmadu Bello University, Zaria (2016) All FWLR (pt.851) @ 1377 (CA)
58
The Governor-General (of Pakistan),PLD (1955) F.C 435
10
2. In order to streamline and complement the Law, when no other thing can do in the
circumstance;
3. Serve as an implied mandate of a lawful sovereign to a rebel government;
4. Waive compliance with due process in times of emergency or exigency; and
5. Place the welfare of citizens over and above the Law of the land, in the face of
looming ruination of the societal fabric.
However, it will be recalled that in the cause of our introduction, it was pointed out that the nemo
judex rule was not observed by God in dealing with Adam, despite Him being: the complainant,
the witness, the prosecutor and the judge. All of which are antithesis to the nemo judex rule.59
The reason was based on necessity because God was the only Supreme Being capable of
adjudicating at the time and no other person could have done except Him. Do you see necessity
in action, even before the orderly society we live in today?
Craig’s postulation is aptly stated that:
“The normal rule against bias will be displaced in circumstances where the individual whose
impartiality is called in question is the only person empowered to act.”
An offshoot of the doctrine of necessity as an exception to the nemo judex rule is: Statutory
Authority.
‘The Acts of Parliament’, said Mr. Singh, ‘however, can override the principles of natural
justice’. It is submitted that this view is valid in law and of considerable acceptance. In other
words, where the legislatures enact a law, making it mandatory therein that a person must sit
over a matter, irrespective of his partiality, then the nemo judex rule shall take a second place
because it has been displaced by statutory authority and as such, necessity takes precedence.
The Supreme Court of Nigeria utilized the necessity doctrine to displace nemo judex rule in the
case of: Ex ParteOlakunrin60because by statutory authorities, the person empowered by law to
59
Balogun Sofiyulahi O, (n 54)
60
(1985) NWLR (PT. 4) 652; (1985) LPELR-SC 98; (1985) 5 S.C 161
11
exercise disciplinary control over the appellants (was alleged to be biased) was mandated to sit
and adjudicate.Justice Nnamani JSC (as he then was) held:
Besides, it is also settled that a person who is prima facie disqualified for interest or bias
may be held on grounds of necessity, competent and obliged to adjudicate if no other
duly qualified tribunal can be constituted.
Similarly, Justice Bello JSC hit the nail on the head in a more forcible and captivating matter, in
the following words thus:
…the rule of natural justice must give way to the rule of necessity…The rule of necessity
permits an adjudicator to be a judge in his cause if his participation is absolutely
necessary to arrive at a decision.
The Supreme Court of U.S in the celebrated case of United States v. Will61affirmed the necessity
doctrine to the effect that ‘it prevails over the disqualification standard’.
It is pertinent to note and must be stressed, that this necessity rule does not operate to truncate or
obliterate the nemo judex rule at will because it only operates parallel and impliedly to the law in
exceptional circumstance(s), when no other thing can do.62 It is submitted that in the application
of this exception to the nemo judex rule, the “audialterempatem rule” must be observed because
that is the essence of the provision of subsection 2 of section 36 of the 1999 Constitution.63
However, despite the widespread acceptance of the rule of necessity in state administrative law,
there is general recognition of its unfairness, and the inherent tension between it and the right to
an impartial decision maker. Application of the rule of necessity has been called a “regretful
circumstance” and a “choice between two evils”.64
2.3.2Contempt of Court
61
499 U.S 200 (1980). See also the Supreme Court of India cases of : Ashok Kumar Yadav v. State of Haryana(1985)
4 SCC 417; Tata Cellular v. UOI (1994) 6 SCC 651 and the Court of Appeal of Tennessee case of : Gay v. City of
Somerville 878 S.W.2d 124 (1994), the latter case adopting United States v. Will(supra).
62
63
Ibid
64
ArnorldRochvarg, Is the Rule of Necessity Necessary in State Administrative Law: The Central Panel Solution, 19
J.Nat’lAss’n Admin.L Judges (1999) available at http://digitalcommons.pepperdine.edu/naalj/vol 19/iss2/3
12
‘Contempt of Court’, said Mr. Jackson, ‘has a long history with periods when it little public
interest…The subject is complicated because several different conceptions are brought under the
same heading of contempt of court’. 65 However, contempt of court is the act of putting into
disrepute, disdain or denigrating the integrity of the court either directly or constructively which
may be civil or criminal.
Justice Agbaje JSC (as he then was)while examining contempt polarized the concept into two
and posits thus:
Contempts are of two kinds, direct or constructive. When the contempt are direct i.e
committed in the immediate view And presence of the court or so near the presence of the
court as to obstruct or interrupt the due and orderly course of proceedings they are said to
be contempt committed in curiae facie i.e contempt in the face of the court. On the other
hand, those contempt which arise from matters not occurring in or near the presence of
the court, said to be constructive or indirect contempt, are referred to as contempt
committed ex facie curiae.66
It is submitted that the notorious classifications of contempt as civil and criminal can be
competently brought under the two heads of direct and indirect or constructive contempt of court
respectively.67
Broadly speaking, not all these types of contempt operate as an exception to the nemo judex
rule except: direct or in facie curiae contempt, committed in the presence of the court. This
constitutes an exception for various purposes and reasons, for instance, an accused person
scandalizing the court can be swiftly punished for denigrating the integrity of the temple of
justice.68 This is based on the policy of law that: ‘the honesty and integrity of a judge cannot be
questioned but his decision may be impugned for error of law or fact’ but this is not to conclude
that a judge cannot be justifiably be required to disqualify himself on valid and reasonable
ground(s).69
65
R M Jackson, The Machinery of Justice in England, (Cambridge University Press 1940) 317
66
Justice Agbaje JSC (as he then was) in 1990 Judicial Lectures: Continuing Education for the Judiciary, MIJ
Publishers, titled “Contempt of Court and Discourtesy”
67
68
Ibid
69
Ibid
13
Besides, this paper must at once point out the various provisions that empower the court to deal
with, or punish for civil and criminal contemptuous acts in Nigeria, although not concentrated in
a single statute or provision. These are: 1999 Constitution of Nigeria; Criminal Code Act
CAP. C38 LFN 2004 and Sheriffs and Civil Process Act.
The provisions are: sections 17(2)(e), 6(6)(a) and 39(3)(a) of the 1999 Constitution; sections 6
and 133 of the Criminal Code; sections 66 and 72 of Sheriffs and Civil Process Act. For clarity
sake, section 6 provides:
Nothing in this Act or in the code shall affect the authority of courts of record to punish a
person summarily for the offence commonly known as contempt of court; but so that a
person cannot be so punished and also punished under the provisions of the code for the
same act or omission.
Section 39(3)(a) provides :
(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a
democratic society –
(a) for the purpose of preventing the disclosure, of information received in

confidence, maintaining the authority and independence of courts…
An accused person who commits contempt in the face of the court can be punished by committal
to prison instantly by the judge manning the court without the process of formal trial because the
punishment is meant to preserve and protect the integrity and utmost authority of the court, but
not the judge in person.70 This instant punishment clearly violates the nemo judex rule because
the judge is ‘the complainant’, ‘the witness’, ‘the prosecutor’ and at the same time, ‘the judge’.
The Supreme Court in Atake v. A.G Federation71 held that:
In proceedings instanter or trial brevimanu (i.e. punishment instantly for contempt in the
face of the court), the judge before whom is the contemnor, is the prosecutor, witness and
judge.
70
See Lord Widgery CJ in A.G. v. Times Newspaper Ltd (1972) 3 All E.R.
71
(1982) 11 SC 153;(1982) LPELR-SC 5
14
Contrast the above principle with the general one stated in LPDCvFawehinmi72 thus :
And so, we arrived at the situation in which the Attorney General of the
Federation…drafted the charges as the prosecutor and got himself to sit as a judge …such
a proceeding would obviously have been null and void on that score as being an
infringement of the principle nemojudexincausasua.
Judges have however been cautioned by Stephen L.J in Bologh v. St. Albans CrownCourt73 that:
The punishment must never be invoked unless the ends of justice really require such
drastic means; it appears to be a rough justice, it is contrary to natural justice; and it can
only be justified if nothing else will do.
Finally, it is hoped that despite the justification of judges punishing the contemnor instantly for
contempt in facie curiae, which has been discussed in this paper as a valid exception to the
nemojudex rule, caution and judicial restraint will always be exercised. 74
2.3.3The Doctrine of Waiver
Waiver means, according to the English Mini Dictionary the act of waiving, or not insisting on,
some right, claim or privilege. The idea of ‘waiver’ being an exception to the nemojudex rule is
founded on the logical And legal premise that he who does not complain is deemed to have
consented, irrespective of whether or not irregularity exist against him.
Therefore, Craig stated it correctly when he said:
“The premise behind the ability to waive is that it is only the individual who is concerned; and
thus if that person “chooses” to ignore the fact that the adjudicator is an interested party then so
much the worse for the applicant.”
It is finally submitted that this doctrine can only constitute as an exception to the nemojudex rule,
if and only if the affected person neglects to assert his civil and constitutional right, if he chooses
otherwise, then the doctrine of waiver is displaced.
3.0 CONSTITUENTSOF FAIR HEARING UNDER THE CONSTITUTION
72
(1985)LPELR -SC.177/1984
73
1975) 1 QBD 73 @ 90
74
15
Fair hearing as contained in the constitution means the trial of a case or the conduct of the
proceedings therein in accordance with the relevant laws, rules of court and natural justice.75 Fair
hearing must involve the observance of natural justice, but that notwithstanding, other
stipulations have been added to the principles of natural justice, in the constitution and these we
may refer to as the essentials of a fair hearing.76
3.1Hearing within a Reasonable Time
It has been said that a trial within a reasonable time implies a speedy trial.77 What is reasonable
depends on each circumstances. Section 36 of the 1999 Constitution78provides for not only fair
hearing but hearing within a reasonable time, as justice delayed, is justice denied. The pertinent
question that boggles minds is whether trial or hearing in our court are concluded within a
reasonable time? It is stated that this is an area where the Nigerian judiciary has failed us
woefully.79 Judicial determination of disputes take such a long time that in some cases both the
witnesses and the litigants die before a case is finally determined.80 Today, instances abound of
court proceedings commenced more than fifteen years back which are yet to reach the trial stage.
In many cases, favourable judgements obtained after a long and sometimes protracted trial
through the hierarchy of courts tend to lose their flavour, principally because the res has in the
process undergone some irreversible and unproductive changes.81
What then is the legal effect of a prolonged and inordinate delay in the hearing and determination
of a case?, Whether or not it vitiates the trial? It has been held that the legal effect depends on the
circumstances of each particular case. For example, the trial will be vitiated if the learned trial
Judge is no longer in a position to properly review or articulate the evidence adduced before him
and make full use of his advantage in having seen and observed the demeanor and credibility of
witnesses who testified before him. If that is the case, then the prolonged or undue delay is
75
Ajogwu (n 3) at 42
76
Ibid. In Kotoye v CBN (1989) 1 NWLR (Pt. 98) at 426, the Supreme Court per Nnamani JSC stated the essential
or constituents of a fair hearing as: trial within a reasonable time; trial by a Court or Tribunal established by law;
prior notice (adequate time and facilities); opportunity to be heard; entitlement to legal representation; right to
examine witnesses; assistance of an interpreter and proceedings to be held in public.
77
Ariori v Elomo (1983) S. C. 13
78
African Charter on Human and People’s Right (Ratification and Enforcement) Act), Article 7 of the African
Charter
79
Nnamani Ogbu (n 11) at263
80
Ibid
81
Jegede M I,What’s wrong with the Law? (Lagos: Nigerian Institute of Advanced Legal Studies 1993) 41
16
capable of occasioning a miscarriage of justice and will vitiate the trial.82It will be otherwise if
the memory of the learned Judge has not blurred or in any way been adversely affected and no
credibility of the witnesses was involved.
A reasonable time is a time justified by reason. Reasonable time in its nebulous content cannot
be determined in vacuo but in relation to the facts of each case. This is because what constitutes
a reasonable time in one case may not necessarily constitute a reasonable time in another case.83
It can be submitted that reasonable time is the period of time which in the search for justice, does
not wear out the parties and their witnesses and which is required to ensure that justice is not
only done but appears to a reasonable person to be done.84
3.2 Trial by a Court or Tribunal Established by Law
Under the Constitution,85 a person shall be entitled to a fair hearing within a reasonable time by a
Court or other tribunal established by law and constituted in such a manner as to secure its
independence and impartiality. Implicit in this subsection are the notion of right to have one’s
cause heard by a neutral adjudicating body. It is not enough to lift up the phrase “fair hearing”
from the content of section 36(1) and seek it’s protection against an act or acts of the government
without giving thought to the total import and amplitude of its provisions. There seems to
beconfusion and befuddlement of thought or what one may call convoluted reasoning when
reliance is placed under section 36 (1) of the Constitution.86
The fair hearing which is guaranteed to the individual is that which will be in court or other
tribunal established by law and constituted in “such a manner as to secure its independence and
impartiality.” In other words, the bedrock of fair hearing is the securing of “independence and
impartiality of the court or other tribunal established by law.”87
82
Awoniyi& Sons v Igbalaiye&Ors. (1965) All NLR 163
83
Pam v Mohammed (2008) 16 NWLR (Pt. 112) at 17. In Danladi v Dangiri&Ors (2014) LPELR-24020 (SC), the
Supreme Court, per Ngwuta JSC, stated that the phrase “within a reasonable time, implies that the time for the
determination of the matter should not be too short or too long, depending on the nature and facts of the case.’
84
Ariori v Elemo, Ibid
85
Constitution of the Federal Republic of Nigeria, 1999 section 36(1)
86
Ajogwu (n 3) at 50
87
Oko v Governor, Benue State (1983) 4 NCLR 606 at 609. In Onuoha v Okafor (1985) 6 NCLR 503, the term,
‘court’ or ‘judicial tribunal’ in the Constitution is liberally used to indicate a person or body of person exercising
judicial functions by common law, State, patent charter, custom, etc.
17
If the court or tribunal is not from the word go established by law and so constitute, the
constitution does not recognize it as being in a position to discharge the obligation of fair
hearing.88 Where a court or tribunal is not properly constituted, it raises jurisdictional issues.
3.3 Proceedings to be Held in Public.
Pursuant to section 36 (3) of the Constitution,89 proceedings of a court or tribunal in matters

relating to civil rights, obligations and criminal offences (including the announcement of the
decisions), shall be held in public. The Supreme Court in Kotoyev CBN 90 held that the
proceedings of a court shall in accordance with section 33 (3) of the 1979 Constitution91 be held
in public and all concerned shall have access to and be informed of such a place of public
hearing. Sitting in chambers to deliver judgement is wrong. 92 It has been held that ruling in
chambers even if it be done with the consent of both parties is null and void because the
provision of section 36 (3) is mandatory.93This is because the judge’s chambers is not an open
court. It is not one of the regular courtrooms where the public have right of ingress and egress as
of right.94
However, the proceedings of the court may hold in camera. This means that it may exclude
persons other than the parties thereto or their legal representatives in the interest of defence,
public safety, public order, public morality and the welfare of persons who have not attained the
age of 18 years.95 It could also hold in camera in order to protect the private lives of the parties
or to do away with publicity which would be contrary to the interest of justice.96
3.4 Fair Hearing in Public and Within Reasonable Time
Section 36 (4) provides that: “whenever any person is charged with a criminal offence, he shall,
unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by
a court or tribunal.” This provision vests on accused persons the right to have their trial
88
Ibid
89
Constitution of the Federal Republic of Nigeria 1999 (as amended)
90
Ibid
91
Same as section 36(3) of the 1999 Constitution (as amended)
92
Abarshi v COP (2005) INCC
93
Salawu v Adza(1997) 11 NWLR (Pt. 527) 36 CA. See also Nuhu v Ogele (2004) FWLR (Pt. 193) 362
94
Nigeria Arab Bank v Barr Engineering (Nig) Ltd (1995) 8 NWLR (Pt. 413) 257 at page 290
95
1999 Constitution (as amended) section 36 (4) (a) (b)
96
OkparaOkpara (n 15) at 199
18
conducted in open court, within reasonable time and by regular courts. It must be noted that only
regular courts created under section 6 of the Constitution has the power to try criminal offences
and impose sentence.97The determinant of whether a trial was held in public does not pertain to
the venue but whether the public had access to the trial. In the case of Mkailu v The State98 the
Court of Appeal held that the submission of written address by Counsel, which were not later,
canvassed in open court offended against the subsection in question.99
It is pertinent to note that while section 36 (3) deals with civil matters, section 36 (4) deals with
criminal matters.
3.5Presumption of Innocence
According to section 35 (5) of the 1999 Constitution “every person who is charged with a
criminal offence shall be presumed to be innocent until he is proved guilty.100 This is an offshoot
of the accusatorial criminal justice system where the prosecution has the burden of proving the
guilt of the accused person.101 By presumption of innocence, every accused person appearing
before a court is presumed to be innocent of the charge. Accordingly, no matter the nature or
gravity of the offence or notoriety of the accused, this presumption must be drawn in favour of
the accused person.102 The effect of this presumption, therefore, is to place the burden of proof of
the guilt of the accused on the prosecution. In other words, by this, it is not the duty of the
accused to prove his own innocence. Rather it is the duty of the accuser to prove the guilt of the
accused.103 The burden placed on the prosecution is however not to prove the guilt of the accused
person beyond all iota of doubt.104
3.6 The Five Cornerstones of Fair Trial in Section 36 (6)
97
Nwabueze B O, Presidential Constitution of Nigeria Hurst & Co. 1982) 431. See also Garba v University of
Maiduguri (ibid)
98
(2001) 8 NWLR (Pt. 715) 469 CA.
99
In this case reasonable time was interpreted and the Court of Appeal held that seven months period after final
addresses, before judgement was delivered was unreasonable and amounted to breached of subsection 4.
100
Constitution, Section 36 (5) See also Onuoha v The State (1991) 4 NWLR (Pt. 185)322 at 357
101
Nwodov The State (1996) 4 NWLR (Pt. 185) 341 at 355; see also Ogbunjo v The State (1996) 6 NWLR (Pt 4520
at 98
102
Jacob Abiodun Dada, The Law of Evidence in Nigeria (Second Edition, University of Calabar Press 2015) 52
103
Anthony Isibor v State (2001) FWLR (Pt. 78) 1077 CA
104
Okoroji v The State (2002) 5 NWLR (Pt. 759) 21 at 53
19
Section 36 (6) provides for the “five cornerstones” of “fair trial”. These cornerstones are:(i) the
requirement of the accused being promptly told in the language he understands and in details, the
nature of his offence; (ii) time for the accused to prepare for his defence; (iii) to defend himself
in person or by a legal practitioner of his own choice; (iv) opportunity to put in his own
witnesses and cross-examine those for the prosecution and (iv) the right to have an interpreter
without payment if he cannot understand the language of the court of trial.105
The import of section 36(6)(a) is that an accused person charged with criminal offence must be
promptly informed in the language he understands, the reason for the charge and the detail of the
case against him. Failure to do this will be fatal to the case on appeal. Hence, in Kajubo v
State,106 the Supreme Court held that where the charges were neither read nor explained to the
accused person, the whole proceedings was a nullity.107
The import of section 36 (6) (b) being that the court should in nowhere stand on the way of the
accused person in the process of preparing for his defence. Thus, where an accused person asks
for an adjournment on the first day of the case to enable him get a counsel and such is refused, it
will be a breach of section 36 (6) (b) of the constitution and would obviously invalidate the
proceedings on appeal.108 But if the application for adjournment is based on frivolous grounds
and the trial Court may lose trend of the case etc, such application ought not be granted.109
The Supreme Court had held that where an accused person is facing trial for capital offence
(involving death penalty) he should be provided with a counsel by the court where he is unable
to get one.110Where such representation of an accused is conducted half-heartedly, improperly or
105
Igwenyi (17) at 375-376
106
(1988)1 NWLR (Pt 73) 721
107
In the case of Erakunre v State (1993) 6 SCNJ (Pt 1) 73, the Supreme Court quashed a conviction whose record
of proceeding indicated thus: “M IEdokpayi S. C. for the State, J. E. Sharkarho for the accused. Charge read to the
accused. He pleads not guilty to the law Court. Prosecution opens its case”. The Supreme Court’s reason for
quashing the conviction being that the charge was not fully read as there was no evidence of the language used and
who did the interpretation.
108
In Gokpa v IGP (1962) 1All NLR 432, the High Court quashed the conviction registered at the Magistrate’s
Court on the ground that the appellant was not given adequate time to prepare for his defence. It however ordered a
retrial of the matter.
109
Shemfe v. COP (1962) N.N.L. R. 87
110
Josiah v The State (1985) 1 NWLR (pt1) 125
20
ineffectively by inexperienced legal practitioners, the Supreme Court had held that it amounted
to denial of right to fair hearing.111
Subsection 6 (c ) of section 36 is to the effect that every accused person facing trial has right of
self-defense or by a legal practitioner of his choice. It has however been held that such a counsel
must not be one with disability of any sort with regard to right of entrance and exit from Nigeria.
He must be a Nigerian Citizen.112 It has been held in UzodinmavCommissioner of Police113 that
where an accused is denied a right of legal representation by any law or regulation such a trial
shall be quashed.114
Subsection (6) (d) of section 36 grants the accused right to examine by himself or through his
lawyer the witnesses called by the prosecution before any court and to obtain the attendance and
carry out the examination of the witnesses to testify on his behalf before the court on the same
conditions as those applying to the witnesses by the prosecution. Hence, he has right to call his
own witnesses and has right to cross-examine witnesses called by the prosecution.115
The import of subsection (6) (e) of the 36 of the Constitution is that an interpreter for the accused
person must be that who he will not be asked to pay any money on account of such service. This
request for an interpreter must be made by the accused before the court of trial.116 Where an
accused person fails to invoke this right and goes on with trial as if everything is normal, he
cannot be heard later to complain of a breach of his right to have an interpreter. An interpreter
must interpret sentence by sentence and not just by mere summary interpretation of the whole
hearing.117
3.7 Right to be given record of proceedings.
111
Udofia v The State (1988) 3 NWLR (pt. 84) 533
112
This informed the decision of the court in Awolowo v Minister of Internal Affairs (1966) 1 ALL NLR 178. In
this case, Chief Awolowo had hired an English lawyer to defend him and his lieutenants during the treasonable
offence trials but the Minister did not grant the lawyer visa into Nigeria. Chief Awolowo contended that the refusal
was a breach of his constitutional right to have a lawyer of his choice but it was held that the Minister’s action was
constitutional and a legal practitioner of one’s choice must be one who has right to come in and go out of Nigeria.
113
(1982) 3 NLR 323 or (1982) 1 NCR 27
114
In this case, the appellant was tried at an Area Court where he was not allowed a counsel because of section 390
of the Criminal Procedure Code and section 28 of Area Court Edict of 1967 (Northern State.
115
Igwenyi (n 17) at 377
116
Gwonto v The State (1983)SC 69; see also Uwaekweghinya v The State (2005) 9 NWLR (Pt. 930)227
117
Ajayi&Jakande Jos v Zaria Native Authority (1964) NMLR 61
21
The accused person is entitled to be given the record of the trial. When any person is tried for
any criminal offence, the court or tribunal shall keep a record of the proceedings and the accused
person or any persons authorised by him in that behalf shall be entitled to obtain certified true
copies of the record of proceedings. He is also entitled to a copy of the judgement in the case
within seven days of the conclusion of the case.118
The promptitude of preparation and production of record of proceedings is hardly achieved

because of a variety of factors such as incompetent and inadequacy of staff in the secretarial
section of the judiciary, inadequate energy supply and scarcity of funds. 119 This provision is just
for window-dressing as it only serves to give the accused impetus to legitimately ask for the
record of proceedings, which is often obtained after weeks.120
What then is the legal effect of refusal to make available the record of proceedings and or
judgement to the accused within seven days as guaranteed by the constitution?A learned
scholar,121 is of the firm view that a refusal to make this available (not necessarily within 7 days)
will be viewed as a denial of this right under subsection 7. Perhaps, his view must have been
informed by the aforementioned factors. With unalloyed respect to the above view, the word
‘shall' used in that subsection conveys a peremptory obligation that must be obeyed. It is our
submission that the seven days period of time must be complied with.
3.8 Absence of Retrospective Legislation (ExPostFactoLaws)
Legislations are deemed to be retrospective when they are to come into force at a date earlier
than when the law was enacted.122 Subsection 8 of section 36 is to the effect that there should be
no retroactive legislation in criminal law and procedure. The subsection provides that no person
shall be held to be guilty of a criminal offence on account of any act or omission that did not, at
the time it took place, constitute such an offence, an no penalty shall be imposed for any criminal
offence heavier than the penalty in force at the time the offence was committed.123
118
Constitution of the Federal Republic of Nigeria (as amended) section 36 (7)
119
Igwenyi, (17) at 378
120
Ibid
121
ibid.
122
Olomojobi, (n 1) at 157
123
Constitution, section 36 (8)
22
In criminal law, the constitution prohibits any construction that will give a statute retrospective
effect.124 Retrospective criminal laws are a feature of military rule. The constitutional provision
that is against retrospective legislation is always part of the Constitutional provisions suspended
by the military once they assume power.125
3.9 Rule Against Double Jeopardy
The constitution prohibits subjecting a person to trial twice for an offence that has the same
elements with the earlier one he has been tried for. It provides that no person who shows that he
has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either
convicted or acquitted shall again be tried for that offence or for a criminal offence having the
same ingredients as that offence save upon the order of a superior court.126
The provision is often referred to as the “rule against double Jeopardy” and is a re-enactment or
codification of the Common Law principles of “autrefois acquit” (meaning he has been tried
before and acquitted) and “autrefois convict” (meaning he has be tried before and convicted
before). 127 What determines whether a person should plead “autrefois acquit” or “autrefois
convict” is whether the same evidence is required to sustain conviction of the victim in the latter
charge 128
For one to successfully plead any of the above “rules against double Jeopardy”: there must have
been a prosecution or trial; the trial must be before a competent court; the accused must have
been convicted or acquitted of the first offence, mere dismissal of a complaint or discharge of an
accused person is not an acquittal for this purpose and the second trial must be in respect of the
same offence, as the first or both offence must have the same ingredients.129
124
Afolabi v Governor of Oyo State (1985) 2 NWLR (Pt. 9 768 at
125
Ibid
126
Constitution, section 36 (9)
127
Igwenyi (n17) at 379
128
Ashe v Swenson 399 US 436 (1970) where a second trial was quashed on this ground by the US Supreme Court.
129
AnozieM C,Notes on Nigeria Constitutional Law (Revised Edition, Enugu: Pymonak Printing & Publishing Co.
2000) 223. See also the case of Chief of Staff v Iyen(2005) 6 NWLR (Pt. 922) 496
23
It is pertinent to that where on grounds of appeal, the case is ordered to be retried before another
court or merely there is an appeal by the prosecution over an acquittal or conviction with light
sentence, the accused person cannot plead any of these rules.130
3.10Enjoyment of Pardon
Section 36 (10) of the Constitution of Federal Republic of Nigeria (as amended) bars trial of any
person who shows that he has been pardoned for a criminal offence. Thus, where a person
commits an offence and he is pardoned by the Governor or the President depending on whether it
is State or Federal, he cannot thereafter be brought before a court or tribunal for trial again for
the same offence. This means that here, the accused was not acquitted or convicted but pardoned
outrightly before trial.131
A person granted pardon can prove this in court by tendering duly signed copy of the instrument
of pardon and not mere sheet of paper which is unsigned containing names of some people
allegedly pardoned by the President or Governor132 or he can prove same by tendering a gazette
containing the instrument of pardon. On the effect of pardon, the Court of Appeal held in Falaev
Obasanjo,133 that it creates a new person on who is pardoned and clears him of all disadvantages
that would have followed him on account of the offence in question. It restores the rights of the
person pardoned with regard to the offence.134
3.11 Right Against Self-incrimination
A person under trial cannot be compelled to testify against himself at his trial. Section 36 (11)
provides that no person who is tried for a criminal offence shall be compelled to give evidence at
the trial. This right is available to the accused person alone. This is because other witnesses,
particularly those called by the prosecution may be made to give evidence even when ordinarily
they are not willing. This provision is aimed at avoiding Self-incrimination.
Although, the Constitution grants right to an accused to keep quiet, yet when a clear and direct
accusation is made against a person, in his presence, in circumstances which should warrant
130
NafiuTabiu v State (1980) 8-11 SC 130 at 164-166
131
Ibid
132
Obidike v State (2001) 17 NWLR (Pt. 743) 601
133
No. 2 (1999) 4 NWLR (Pt. 599) 476 CA
134
The Court, in that case, refused to accept the petitioner’s contention that after pardon that conviction remained
unreserved and served to disqualify the respondent for the office of President.
24
instant denial, refutation or protest from him and he does not deny, refute or protest against the
accusation, evidence of such could be given against him as evidence of admission by
conduct.135This view should be taken as a proof of or example of admission by conduct and not
that an accused person who chooses not to give evidence loses this constitutional protection of
remaining silent during trial.136
A presiding Judge should not make strong comment on the refusal of an accused person to give
evidence. This is because such strong comment may be taken as evidence of bias against the
accused and may constitute a ground for reversal of the judgement of such court on appeal. 137 In
other words, a court’s comment on the refusal of the accused to give evidence should be mild
and not damning because it is inconsistent with the presumption of Innocence which is a cardinal
principle of fair hearing.138
3.12 Offence and Penaltymust be contained in a Written Law
Section 36 (12) provides that a person shall not be convicted of a criminal offence unless that
offence is defined and the penalty therefore is prescribed in a written law. The constitution goes
further to state that written law means an Act of the National Assembly or a Law of a State
House of Assembly or other rules emanating from delegated legislation. The cardinal
requirement is that such offence must be a creation of a law made by parliament either directly or
through subsidiary means. Thus, all rules of Customary law or sharia law, which are not
codified, cannot be used to try and either convict or acquit a citizen of this Country. No wonder,
in AokovFagbemi ,139 the applicant was convicted of committing adultery by living with another
man without judicial separation in the Customary Court. On appeal to the High Court it was held
that the applicant had violated no law that is written and her conviction was contrary to section
21 (10) of the 1960 Constitution (now section 36 (12) ) and cannot stand. To be noted that under
the Criminal Code (operating in Southern States of Nigeria) adultery is not an offence. Again the
inherent powers of the court granted under section 6(6) (a) of the 1999 Constitution, allow them
135
Dapere Gira v The State (1996) 4 NWLR 375 SC
136
Ibid
137
Garba v State (1997) 3 NWLR (Pt. 492) 144 SC
138
Igwenyi (17) at 380
139
(1961) 1 ALL NLR 400
25
to punish for the common law crime of “contempt of court” which is not written down any where
as a criminal offence.140
4.0EFFECT OF THE BREACH OF A RIGHT TO FAIR HEARING
Where an accused person in the case of a criminal proceeding or a party to a civil proceedings is
denied one of the essentials of a fair hearing as provided in the constitution, there has been a
breach of fair hearing. A breach of the provision of section 36 of the Constitution of the Federal
Republic of Nigeria 1999 will be reviewed by means of the prerogative orders of certiorari,
prohibition and mandamus; the prerogative writ of habeas corpus or may be enforced under the
Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant ‘to the powers
conferred on the Chief Justice of Nigeria.141 In the case of Otapo v Sunmonu142 the court stated
that any breach of this principle, (principles of natural justice and principles of fair hearing),
results in the nullity of the proceedings. In that case, Obaseki JSC went on to say that:
“the absence of fair hearing or rather the denial of fair hearing to the appellant…is
fatal to the judgement of the Court of Appeal”
In other cases, such as cases of dismissal (from the public service) of a public officer, the effect
of a breach of the provisions for fair hearing as in the cases of Olaniyan v University of Lagos143
was the declaration that the dismissal was invalid and so the public officer was entitled to
continue to be employed. It should be noted that a breach of the rule does not per se give rise to a
cause of action for damages. The aggrieved party must show that the impugned act constituted a
breach of contract, statutory duty, fundamental human rights or any other recognised civil wrong.
In Idris Rabiu v State,144 the Court of Appeal held that the right to fair hearing is an extreme
fundamental right in the Constitution and a breach thereof has its implication on the proceedings.
It is very clear from our Constitution that every person charged with a criminal offence is entitled
to be given adequate time and facilities for the preparation of his defence. Thus, the right to be
heard is fundamental and indispensable requirement of any judicial decision. To this effect, the
140
Igwenyi, ibid at 381
141
Section 46 of the 1999 Constitution
142
(1961) 3 WLR 1405 at 1409
143
(1987) 2 NWLR (Pt 68( 587 SC
144
(2005) 1 NCC 578
26
Supreme Court observed in the case of State v Onagoruwa, 145 among other things that fair
hearing is in the procedure followed in the determination of the case, not in the correctness of the
decision. Neglect or failure to abide by the rule of fair hearing renders both the proceeding and
its outcome meaningless.
5.0 CONCLUSION OR CONCLUDING REMARKS
The importance of fair hearing in our adjudicatory jurisprudence cannot be over-emphasised, it
pervades the entire existence and humanity.Fair hearing is founded on the twin pillars of Natural
Justice expressed in the maxims Audi alterampartem and Nemo judex in causa sua. In every
trial, civil or criminal or quasi-judicial, where decision is to be taken against a person, fair
hearing principles must be observed. The right to a fair hearing requires that an individual shall
not be penalised by a decision affecting his rights or legitimate expectations unless he has been
given prior notice of the case against him, a fair opportunity to answer it and the opportunity to
present his own case. It also requires that the person hearing the matter be an unbiased person
and should not have a likelihood of bias. Where the basic attributes of a fair trial or safeguards
constitutionally guaranteed for fair hearing are breached in any trial, the decision reached is null
and void.
The question as to whether any trial is fair depends not in the correctness of the proceedings but
whether the procedural requirements for fair hearing has been followed and party entitled to the
right has been given opportunity to enjoy and exercise the right. But where a party fails to avail
himself of the opportunity of fair hearing accorded him, he cannot be heard to complain that he
was denied fair hearing. He would be deemed to have waivedsame.
Therefore, Judges and those sitting over disputes mustbe pro-active byensuring that fair hearing
principles areobserved and eschewbias or likelihood of bias or sentiments which will put a
stumbling block to the adjudicatory wheel of fair trial. Parties to litigations in courts, tribunals or
any other body or bodies sitting in quasi-judicial capacity, at all time, must be afforded the
opportunity of fair hearing as failure to accord or breach of fair hearing renders the entire trial or
hearing meaningless.
145
(1992) 2 NWLR (pt 221) 33
27

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OJUMU, EMEJE & NWAJAH

JURISPRUDENTIAL EXAMINATION OF THE CONSTITUENT KERNELS OF FAIR HEARING https://doi.org/10.53982/alj.2022.1001.01-j

ABUAD Law Journal (ALJ)

Jurisprudential Examination of the Constituent Kernels of Fair Hearing

The importance of fair hearing in the administration of justice can never be

2.0 FAIR HEARING AND NATURAL JUSTICE

2.1 Audi Alteram Partem

6. The discretion to grant an adjournment must be exercised judiciously. Where it is

The principle of fair hearing as constitutionally guaranteed in Section 36 of the 1999

2.3 The Basic Exceptions to Nemo Judex In Causa Sua Rule

2.3.1 Doctrine of Necessity

Conversely stated, the doctrine of necessity can operate to:

1. Validate actions or acts which are ipsofacto unlawful, to be lawful;

Craig’s postulation is aptly stated that:

Section 39(3)(a) provides :

(a) for the purpose of preventing the disclosure, of information received in

The Supreme Court in Atake v. A.G Federation71 held that:

2.3.3The Doctrine of Waiver

3.0 CONSTITUENTSOF FAIR HEARING UNDER THE CONSTITUTION

3.1Hearing within a Reasonable Time

3.2 Trial by a Court or Tribunal Established by Law

3.3 Proceedings to be Held in Public.

Pursuant to section 36 (3) of the Constitution,89 proceedings of a court or tribunal in matters

3.4 Fair Hearing in Public and Within Reasonable Time

3.6 The Five Cornerstones of Fair Trial in Section 36 (6)

3.7 Right to be given record of proceedings.

The promptitude of preparation and production of record of proceedings is hardly achieved

3.8 Absence of Retrospective Legislation (ExPostFactoLaws)

3.9 Rule Against Double Jeopardy

3.11 Right Against Self-incrimination

3.12 Offence and Penaltymust be contained in a Written Law

4.0EFFECT OF THE BREACH OF A RIGHT TO FAIR HEARING

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